Kough v. Pennsylvania Railroad

Citations

• 222 Pa. 175
• 70 A. 1004
• 1908 Pa. LEXIS 674

Syllabus

<p>Railroads — Damages—Trespass—Pleadings—Variance—Allegata and probata.</p> <p>It is not enough that the evidence shows a cause of action; it must show the cause alleged.</p> <p>In an action by a landowner against a railroad company, the plaintiff in his statement averred that the defendant without having tendered a bond entered and appropriated a strip of plaintiff’s land adjoining its right of way, and placed an additional track thereon; that the movement of trains on this track made his house less desirable as a residence because of vibration, noise and dirt; and that the defendant destroyed shade trees and threw stones and earth on a part of his land not appropriated. At the trial the proofs were that the strip appropriated was in fact a dedicated public road, that no shade trees had been injured, and that the throwing of dirt and stones was not on the property of the plaintiff, but on the surface of the street. The only testimony that tended to show injury to plaintiff was to the effect that the construction of the additional track interfered with the means of access to plaintiff’s property. Held, that it was reversible error to permit the jury to allow plaintiff damages for interference with access to his property, inasmuch as there was nothing alleged in the statement of claim as a basis for the recovery of such damages.</p>